

o 



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To the Members of the honorable Senate of the United Slates: 



Estate of Dr. J. M. Best, cleceased, 

vs. 

The United States. 



Brief on claim for property condemned and appropriated 

TO THE USE OF THE UnITED StATES, AT PaDUCAH, Ky., DUR- 
ING THE VTAR OF THE LATE REBELLION. 



The property claimed for was a large three-story house, 
with its contents and surroundings, situated one hundred 
and fifty yards from Fort Anderson, in Paducah, Ky. The 
house was of brick masonrj^, well and strongly built, and had 
nine windows and doors opening in the direction of tiie fort, 
from the third story of which destructive w^ork on the lives 
of the garrison in said fort could have been prosecuted. 

This property was condemned by order of Brigadier-Gen- 
eral Charles F. Smith, commanding the post of Paducah, Ky., 
in the fall of 1861, w^hile Fort Anderson was being con- 
structed, on account of its ]3roximity to the fort, to prevent 
its being used against the fqrt by an enemy assaulting the 
fort, and to give open range to the guns of the fort. A 
board of surve}' was appointed by General Smith to value 
and remove or cause the removal of said propert}^ 

The fort was located and constructed while the house was 
standing and occupied by Dr. Best, its owner, witli knowl- 
edge of the advantage to the enemy the house in the hands 
of an attacking enemy would give, and the danger it would 
be to the fort. For proof of which see affidavits of Briga- 
dier-General E. A. Paine and Major-General John McAr- 
thur, now on file with the claim. 

This property was appropriated to the use of the United 
States by destroying it pursuant to the written order of Colo- 
nel S. G. Hicks, of the Fortieth Illinois regiment, United 
States volunteers, while commanding the post of Paducah, 



V 



^ ^ "SO 



Ivy., and the garrison in Fort Anderson on the 2Gth dav of 
March, 1864. 

It was destroyed by order of the comnianding officer 
because of its close proximity to said fort, to prevent its 
being used by the enemy as a cover for thei) near approach 
unobserved to the fort, and to prevent its being used by the 
enem}' in their operations against the fort in an expected 
attack on the fort, which at the time was beheved from infor- 
mation received by the commanding oliicer, and from obser- 
vation made by him, to be imminent and menacing, when 
no battle was in progress, or commenced on that day, or 
afterwards, at that place. 

At the time of said expected attack, and at the time said 
property was destroyed, the garrison in said fort consisted 
of only six hundred and fifty men, and the amnmnition, on 
examination, was found to be short. 

The order for said destruction was not given until the com- 
manding officer became scdisjied from his own observation 
and from information that the enemy were in the immediate 
neighborhood, and concentrating for an attack on said fort 
with a force of live thousand men. 

Before the order for its destruction was given, and while 
information of the certainiy of the expected attack had been 
received, it was agreed by all the officers in the fort, includ- 
ing the commanding officer, that the destruction of this house, 
to prevent the capture of the fort, and to secure the safety of the 
garrison, as the result of said expected attack icas a necessity. 
The expected attack, however, ^xii9, not made in consecjuence 
of the retreat of the enemy. See affidavit of Capt. E. L. 
Chapman and statement of Hon. L. S. Trimble. 

Dr. Best was a loyal citizen of the United States, and an 
ardent supporter of the Union and the Government from the 
first inception of troubles in 1861 to the close of the war; a 
citizen and a resident of a loyal State, and the property appro- 
priated w^as situated in a loyal State. For proof of all which 
see copy of Colonel S. G. Hicks' order dated March 26, 1864; 
also. Colonel Hicks' affidavit; also, affidavits of Major Geo, 
F. Barnes, Captain Thos. P. Carter, Captain E. L. Chapiaau, 
Sergeant Wm. D. James and Brig. Gen'l E. A. James. 

Also statement of Hon. L. S. Trimble. 

The relative situation of the fort and house, the nature and 
character of the grounds and the value of the property, is 
shown by a diagram and the affidavits of numerous witnesses 
on file with the claim. 



i '^i-:;- 



Afterwards, on tlie 30th day of October, 1864, in expec- 
tation of .another attack on Fort Anderson, the standing 
walls of Dr. Best's house were pulled down and levelled as 
near as conld. be with the ground, by order of Brigadier-Gen- 
eral Sol. Meredith, then commanding the post of Paducah, 
and the bricks WT-re taken possession of by Colonel McBride, 
of the 8th regiment U. S. C. A., (II) and Colonel Lawrence 
of the o4th ^ew Jerst?y regiment, and used to construct 
chimneys for their soldiers' tents during the Avinter of 1804-'5. 
For proof of which see affidavit of Colonel McBride and his 
letter to Senator Cole; also, affidavit of Captain E. L. Chap- 
man; also, certificate of Brigadier-General Sol. Meredith 
on lile with the claim. 

The fundamental laws of the Government do not confer 
jurisdiction on the courts to try this character of cases, nor 
does any law of Congress now in -force. The Congress is the 
onlij tribunal which has authority to pass upon and cause 
the payment of this claim. Hence the appeal to Congress. 

This being the state of facts, the principles governing them 
as found in \^atteirs "Lasv of Rations" rends as follows: 

"Is the State bound to indemnify individuals for damages 
they have sustained in war? We may learn from Grotius that, 
authors are divided on this question. The damages under 
consideration are to be distingui>hed into two kinds, those 
done by the State itself or the sovereign, and those done by the 
enemy. Of the first kind, some are done deliberately and by 
way of precaution, as, when a field, a house or a garden, be- 
longing to a private person, is taken for the purpose of erect- 
ing on the spot a town rampart or any other piece of forti- 
fication, or when his standing corn or his store-houses are 
destroyed to prevent their bein.g of use to the enemy. Such 
damages are to be made good to the individual who should 
bear only l:iis quota of tlie loss." See Vattell's "Law of 
JN'ations," p. 402. 

Any diversity of opinion which may have existed in the 
time of Grotius cannot afi'ect the right of citizens of the 
United States to just compcnsarion for private property taken 
for public use; because that right is clearly expressed in the 
Constitution of the United States, and reads thus: "Nor shall 
private property be taken for public use without just compen- 
sation." See amendments to the Constitution, art. 5. That 
right has been adjudicated by the superior courts of the 
country, and that right has often been acted upon by the 
Congress of the United States. 



Vattell, the learned writer on international law, further 
says: "But it is perfectly consistent with the duties of the 
state and sovereign, and, of course, perfectly equitable, and 
even strictly just to relieve, as far as possible, those unhappy 
suifercfs who have been ruined by the ravages of war." See 
Vattell's Law of Nations, page 403. 

The condemnation and destruction of Dr. Best's property 
however, was not ravao:es of v/ar. 

The location and construction of a Government fort, by 
the authorized officers of the Government, in such immedi- 
ate vicinity of the house as to cause the existence of the 
house to endanc/er the safety of the fort and garrison, was a 
deliberate ad. The several examinations of the fort in pro- 
cess of construction, the grounds surrounding it and the ap- 
proaches to it, the examination of the house, the several con- 
sultations concerning it between the commandins; officers, 
and the order condemning it were deliberate acts. ^The con- 
sultation between the commanding officer and other officers 
in Fort Anderson, on the 26tii of March, 1864, the conclusion 
to burn said house and the written order to burn it, were 
all deliberate acts, considered and performed by w^ay of p?T- 
caution and to preverd said property from being taken posses- 
sion of and used by the enemy of the United States ao-ainst a 
tort and garrison of the United States. ° 

In a well-matured and carefully prepared judgment, the 
Court of Claims, in the case of William S. Grant ys. The United 
States, for property destroyed at Tucson, Arizona, have ad- 
judged the law of the United States in this character of eases 
to be that 

^'The taking of private property for use or for destruction, 
when the public exigency demands it, by a military officer 
commanding any part of the public forces, i:^ an exercise of the 
right of eminent domain. 

"Whenever the officer is justified the Government is liable. 
The state of the facts as they appeared to the officer when he 
acted must govern the decision. 

''There is no discrimination to be made between pro])ertv 
taken to be used and property taken to be destroyed.'' See 
Court of Claims Reports, vol. I, p. 41, Wm. S. Grant vs. The 
United States. 

The court held in that case, that the destruction ot Grant's 
property at Tucson luas a taking for jniblic use. See Ibid., p. 

0\). 

The law authorized the court to adjudge Grant compensa- 



tion for his property destroyed at Tucson. Now what differ- 
ence in principle is there between the destruction of Wm. S. 
Grant's property at Tucson, and the condemnation and de- 
struction of Dr. J, M. Best's property at Paducah, The claim- 
ant thinl'^s the case at Paducali is more strongly in favor of 
claimant's right to compensation than the case at Tuscon; 
because W. S. Grant was an army contractor, and went to 
the post in the army and there established his business. In 
doing so he assumed, to some extent, the risks incident to the 
business he had voluntarily engaged in. Dr. Best built his resi- 
dence in a retired place, where and when no risk surrounded 
or danger thrpatened him, and was in the quiet enjoyment of 
the same. The army post went to Dr. Best's locality, and 
built their fort almost in the shadow of Dr. Best's residence, 
with a full knowledge and appreciation on the part of the 
Government of the danger the house would be to the fort in 
case of an assault by the enemy, and as ix, precautionarii meas- 
ure, to avert this danger brought about bij the act of the Govern- 
ment, condemned the house as being dangerous to the exist- 
ence of the fort and the safety of its garrison, and for this 
reason destroyed the house and its contents. Colonel ITicks, at 
the time he caused the destruction of this property, was act- 
ing under and by virtue of a commission from the Govern- 
ment, and was commanding a part of the public forces. In 
obedience to the orders of his superior officers he was holding 
an army post of the Government, and caused the destruction 
of said property when no battle was in progress, but in ex- 
pectation of an attack from an enemy with an army greatly 
superior in numbers to his own, in order to make his hold 
secure. This act was caused to be done by the commanding 
oiBcer in the discharge of the functions properly pertaining 
to the office which he held, and was an exercise of the right 
of eminent domain. "The obligation to make compensatiori 
is co-extensive with the right of the State to take private 
property for pubhc use, and whenever it is taken by compe- 
tent authority the obligation of the State cannot be evaded." 
See Ibid., p. 47. 

Was Colonel Hicks justified in destroying the property of 
Dr. Best? 

''Whenever the officer is justified, the liability of the public 
is established." See Ibid., page 47. 

At the time of the destruction of this property a terrible 
war had been progressing in the United States for nearly 



6 

three years. Fort Anderson was situated on the herder of 
the territor}^ held by the United States, and was liable to be 
assailed on any day and was actually assaulted on March 2otb, 
18G4, and after two or three hours' tight! ng the^assailants 
withdrew. The holding of this fort jmkI post was necessary 
to maintain the line of the United States army in prosecuting 
the war, to secure to them the navigation of [he Ohio, Ten- 
nessee and Cumberland rivei's, and to prevent inroads on the 
territory then held by them. 

On the 26th of March, 1864, Colonelliicks, the command- 
ing officer in said fort, from information received and from 
pei'sonal observation made b}" him, believed that the fort was 
to be attacked by an army of five thousand men, and that 
said attack was imminent and menacing; and while the com- 
manding officei' was making an estimate of all the resources 
at his command, and calculating all the advantages that would 
be against him in the effort to successfully resist said expected 
attack, and knowing that the garrison in said fort consisted 
of only six hundred and fifty men, and learning from the 
ordnance officer's report and othersources that the ammunition 
was short, it was deliberately agreed by the commanding 
officer and other officers in said fort that one of the most 
effective means of resisting said expected attack was the de- 
struction of tliis property. But the expected attack v>'as not 
made. 

Colonel Hicks was not placed in command at Fort Ander- 
son to surrender on the appearance or threatened appearance 
of an enemy. If he had done so he would have been liable 
to court-mr:.rtial. (See 52d Article of War.) He w^as put 
there to hold the fort, and to use all the means in his power 
necessary to do so. From information and observation he 
deemed the destruction of this property one of tl e means neces- 
sary. " In deciding upon the necessity, however, the ,-tate of 
facts as they appeared to the officer, at the time he acted, must 
govern the decision, for he must necessarily act upon the in- 
formation of others, as well as his own observation ; and if, 
with such information as he had a right to rely upon, there 
is reasonable ground for believing that the peril is inmiineut 
and menacing or the necessity urgent, he is justified in act- 
ing upon it, and the discovery afterwards that it was false or 
erroneous will not make him a trespasser. See 13th How- 
ard, U. S, S. C. reports, psiges lo4-5. Also 1st Court of Claims 
reports, pages 48-9, 



If Colonel Hicks had been guilty of loanton destruction 
of property he was liable to court-martial and severe punish- 
ment. 

He was never court-martialed, never charged or even cen- 
sured with having done anything wrong in his management 
of affairs at, or in his defense of Fort Anderson. At the 
close of the war he was honorably discharged from the ser- 
vice 01 the Government. If he Lad been guilty of a great 
public wrong, and in so public a manner would he not have 
been dealt with for it ? He was not dealt with, but his act w as 
ratified by the Government; therefore he is justified and the 
liabilit}'- of the Government is fixed. 

This claim has never been adversely reported by any com- 
mittee having charge of it. 

In the Forty-second Congress a bill providing for its pay- 
ment passed the Senate, but reached the House late in the 
session and was not acted upon for want of time. See Con- 
gressional Globe, part I, 3d session, Forty-first Congress, 
page 319. 

From all which the conclusions are — 

1. That Dr. Best's property was private property. 

2. That by the authority of the Government it was taken for 
public use. 

3. That by the standard authors on international law, by 
the Constitution of the United States and the adjudications 
of the superior courts thereunder, and by the precedents 
established in Congress the Government is bound, to make just 
comimisation for it. 

Maggie Houston, executrix of the estate of Dr. J. M. Best, deceased. 

By Sam Houston, Attorney. 



3 

Afterwards, on the 30th day of October, 1864, in expec- 
tation of another attack on Fort Anderson, the standing 
walls of Dr. Best's house were pulled down and levelled as 
near as could be w^ith the ground, by order of Brigadier-Gen- 
eral Sol. Meredith, then commanding tlie post of Paducah, 
and the bricks w^ere taken possession of by Colonel McBride, 
of the 8th regiment U. S. C. A., (H) and Colonel Lawrence 
of the 34th ^ew Jersey regiment, and used to construct 
chimneys for their soldiers' tents during the wdnter of 1864-5. 
For proof of which see affidavit of Colonel McBride and his 
letter to Senator Cole; also, affidavit of Captain E. L. Chap- 
man; also, certifcate of Brigadier-General Sol. Meredith 
on tile with the claim. 

The fundamental kiws of the Government do not confer 
jurisdiction on the courts to try this character of cases, nor 
does any law of Congress now in force. The Congress is the 
only tribuind which has authority to pass upon and cause 
the payment of this claim. Hence the appeal to Congres?. 

This being the state of facts, the principles governing them 
as found in Vattell's "Law of jSTations" reads as follows: 

"Is the State bound to indemnify individuals for damages 
the}^ have sustained in w^ar? We may learn from Grotius that 
authors are divided on this question. The damages under 
consideration are to be distinguished into two kinds, those 
done by the State itself or the sovereign, and those done by the 
enemy. Of the first kind, some ai"e done deliberately and by 
\vay of precaution, as, when a field, a house or a garden, be- 
longing to a private person, is taken for the purpose of erect- 
ing on the spot a town ramj^art or any other piece of forti- 
fication, or wdien his standing corn or his store-houses are 
destroyed to prevent their being of use to the enemy. Such 
damages are to be made good to the individual who should 
bear only liis quota of the loss." See Yattell's "Law of 
iS''ations,''' p. 402. 

Any diversity of opinion which may have existed in the 
time of Grotius cannot att'ect the right of citizens of the 
United States to just compensarion for private property taken 
for public use; because that right is clearly expressed in the 
Constitution of the United States, and reads thus: " Nor shall 
private property be taken for public use without just compen- 
sation." See amendments to the Constitution, art. 5. That 
right has been adjudicated by the superior coarts of the 
country, and that right has often been acted . upon by the 
Congress of the United States. 



"Vattell, the learned writer on international law, further 
says: "'But it is perfectly consistent with the duties of the 
state and sovereign, and, of course, perfectly equitable, and 
even strictly just to relieve, as far as possible, those unhappy 
sufferers who have been ruined by the ravages of w^ar." See 
Yattell's Law of iSTations, page 403. 

The condemnation and destruction of Dr. Best's property, 
however, was not ravages of war. 

The location and construction of a Government fort, by 
the authorized officers of the Government, in such immedi- 
ate vicinity of the house as to cause the existence of the 
house to mdanger the safety of the fort and garrison, was a 
deliberate act. The several examinations of the fort in pro- 
cess of construction, the grounds surrounding it and the ap- 
proaches to it, the examination of the house, the several con- 
sultations concerning it betw^een the commanding officers, 
and the order condemning it were deliberate acts. The con- 
sultation between the commanding officer and other officers 
in Fort Anderson, on the 26th of March, 1864, the conclusion 
to burn said house and the written order to burn it, were 
all deliberate ads, considered and performed by way of p-e- 
caution and to prevent said property from being taken posses- 
sion of and us(d, by the enemy of the United States against a 
fort and garrison of the United States. 

In a well-matured and carefully prepared judgment, the 
Court of Claims, in the case of WiUiam S. Grant r5. The United 
States, for property destroyed at Tucson, Arizona, have ad- 
judged the law of the United States in this character of cases 
to be that 

''The taking of private property for use or for destruction, 
when the pubUc exigency demands it, by a mihtary officer 
commanding any part of the public forces, is an exercise of the 
right of eminent domain. 

"Whenever the officer is justified the Government is liable. 
The state of the facts as they appeared to the officer when he 
acted must govern the decision. 

"There is no discrimination to be made between pro])erty 
taken to ''be used and property taken to be destroyed.''' See 
Court of Claims Reports, vol. I, p. 41, Wm. S. Grant vs. The 
United States. 

The court held in.that case, that the destruction ot Grant's 
pr^3erty at Tucson ions a taking for public use. See Ibid., p. 
5er'. ■' [ 

The law authorized the court to adjudge Grant corapensa- 



''0 



tion for his property destroyed at Tucson. Xow what differ- 
ence in principle is there between the destruction of Wm. S. 
Grant's property at Tucson, and the condemnation and de- 
struction of Dr. J. M. Best's property at Paducah. The claim- 
ant thinks the case at Paducah is more strongly in favor of 
claimant's right to compensation than the case at Tuscon; 
because W. S. Grant was an army contractor, and went to 
the post in the army and there established his business. In 
doing so he assumed, to some extent, the risks incident to the 
business he had voluntarily engaged in. Dr. Best built his resi- 
dence in a retired place, where and when no risk surrounded 
or danger threatened him, and was in the quiet enjoyment of 
the same. The arm\' post went to Dr. Best's locality, and 
built their fort almost in the shadow of Dr. Best's residence, 
with a full knowledge and appreciation on the part of the 
Government of the danger +he house would be to the fort in 
case of an assault by the enemy, and as n precautionarii meas- 
ure, to avert this danger brought about hg the act of the Govern- 
ment, condemned the house as being dangerous to the exist- 
ence of the fort and the safety of its garrison, and for this 
reason destroyed, the house and its conterds. Colonel Hicks, at 
the time he caused the destruction of this property, was act- 
ing under and by virtue of a commission from the Govern- 
ment, and was commanding a part of the public forces. In 
obedience to the orders of his superior ofiicershc was holding 
an army post of the Government, and caused the destruction 
of said property when no battle was in progress, but in ex- 
pectation of an attack from an enemy with an army greatly 
superior in numbers to his own, in order to make his hold 
secure. This act was caused to be done by the commanding 
officer in the discharge of the functions properly pertaining 
to the office which he held, and was an exercise of the right 
of eminent domain. "The obligation to make compensation 
is co-extensive with the right of the State to take private 
property for public use, and whenever it is taken by compe- 
tent authority the obligation of the State cannot be evaded." 
See Ibid., p. 47. 

Was Colonel Hicks justified in destroying the propertv of 
Dr. Best? 

"Whenever the ofiicer is justified, the liability of the public 
is established." See Ibid., page 47. 

At the time of the destruction of this property a terrible 
war had been progressing in the United States for nearly 



Lunni^ I ur CUNbKEI 



013 701 776 3 

6 

three years. Fort Anderson was situated on the border of 
the territory held by the United States, and was h'able to be 
assailed on any day and was actually assaulted on March 25th, 
1864, and after two or three hours' fighting tbe'assailants 
withdrew. The holding of this fort nnd post was iiecessari/ 
to maintain the line of the United States army in prosecuting 
the war, to secure to them the navigation of the Ohio, Ten- 
nessee and Cumberland rivers, and to prevent inroads on the 
territory then held by them. 

On the 26th of March, 1864, Colonel Hicks, the command- 
ing officer in said fort, from information received and from 
personal observation made by him, believed that the fort was 
to be attacked by an army of five thousand men, and that 
said attack was imminent and menacing; and while the com- 
manding olhcei' was making an estimate of all the resources 
at his conmiand, and calculati]:g all the advantages that would 
be against him in the effort to successfully resist said expected 
attack, and knowing that the garrison in said fort consisted 
of only six hundred and fifty men, and learning from the 
ordnance officer's report and othersources that the ammunitior^ 
was short, it was deliberately agreed by tlie commanding 
officer and other officers in said fort that one of the most 
effective means of resisting said expected attack was the de- 
struction of this propert}'. But tlie expected attack was not 
made. 

Colonel Hicks was not placed in connnand at Fort Ander- 
son to surrender on the appearance or threatened appearance 
of an enemy. If he had done so he would have been liable 
to court-mc.rtial. (See 62d Article of War.) He w^is put 
there to hold the fori, and to use all the means in his power 
necessary to do so. From information and observation he 
deemed the destruction of this property one of tl e means neccs- 
sarij. " In deciding upon the n.eces.-ity, how^ever, tiie state of 
facts as they appeared to the officer, at the time he acted, must 
govern the decision, for he must necessarily act upon the in- 
formation of others, as well as his own observation ; and if, 
w^ith such information as he had a right to rely upon, .there 
is reasonable ground for believing that the peril is inmiinent 
and menacing or the necessity urgent, he is justified in act- 
ing upon it, and the discover}^ afterwards that it was false or 
erroneous will not make him a trespasser. See loth How- 
ard, U. S. S. C. reports, pnges 134-5. Also 1st Court of Claims 
reports, pages 48-9. 



,/7o 




LIBRARY OF CONGRESS 



013 701 776 3 



pHS3 



